Democrats have taken to dubbing a John McCain term as "Bush III," and word just out from the McCain campaign suggests this moniker has some merit, at least when it comes to McCain's position on Executive Power.
Wired.com reports that in a statement released by his campaign Monday, McCain "reserved the right to run his own warrantless wiretapping program against Americans, based on the theory that the president's wartime powers trump federal criminal statutes and court oversight."
Here's the campaign's statement: "N]either the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001. [...]
"We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution."
As wired.com continues, "the Article II citation is key, since it refers to President Bush's longstanding arguments that the president has nearly unlimited powers during a time of war. The administration's analysis went so far as to say the Fourth Amendment did not apply inside the United States in the fight against terrorism, in one legal opinion from 2001."
This sort of expansion of the executive authority was not imagined by the framers when they set up the constitutional separation of powers for the very purpose of limiting the power of any one branch.
If this is John McCain's view, he needs to be defeated. We have seen too well the damage a rogue presidency (what the New York Times, among others, are characterizing as "the most disastrous presidency of modern times") can do to our core constitutional principles.
Showing posts with label executive power. Show all posts
Showing posts with label executive power. Show all posts
Thursday, June 5, 2008
Wednesday, November 7, 2007
What If? A Tale of Two Countries, Pakistan and U.S.
Images out of Pakistan the last few days are striking, with lawyers in business suits hurling tear gas shells back at police and then being rounded up and jailed.
General Pervez Musharraf's declaration of emergency rule last Saturday, including his abolishment of a Supreme Court which has been increasingly critical of his positions on human rights and the validity of his own election, sparked this reaction from the bar. As one prominent Islamabad lawyer, Harvard-educated Babar Sattar, says, "How do you function as a lawyer when the law is what the general says it is?"
And how is Musharraf attempting to justify the imposition of martial law? You guessed it - he needs additional power to combat terrorism.
Sound familiar? America is not the only country with leaders who pander to fear in order to consolidate their power and limit individual rights.
The crucial point is that it's against this sort of autocratic tyranny for which constitutions are built. America's independent judiciary has long reined-in the executive and legislature when they have exceeded their bounds.
Surely if the President of the United States were to claim that he can act beyond the scope of limitations placed upon him by Congress and the Constitution the Supreme Court will slap him down rather than allow him to continue on the path to the sort of tyranny we are now seeing in Pakistan....
Or will it? The positions taken by the newest as well as some of the longer serving members of the U.S. Supreme Court on the issue of Executive Power gives one pause.
If we ever need a reminder on why our Constitution mandates a system of checks and balances, and how very much we depend upon the Supreme Court to prevent the executive from accumulating too much power, we need only look to the images of lawyers at the barricades in Pakistan today, where a powerful executive with a military at his command is making a mockery of the Rule of Law.
General Pervez Musharraf's declaration of emergency rule last Saturday, including his abolishment of a Supreme Court which has been increasingly critical of his positions on human rights and the validity of his own election, sparked this reaction from the bar. As one prominent Islamabad lawyer, Harvard-educated Babar Sattar, says, "How do you function as a lawyer when the law is what the general says it is?"
And how is Musharraf attempting to justify the imposition of martial law? You guessed it - he needs additional power to combat terrorism.
Sound familiar? America is not the only country with leaders who pander to fear in order to consolidate their power and limit individual rights.
The crucial point is that it's against this sort of autocratic tyranny for which constitutions are built. America's independent judiciary has long reined-in the executive and legislature when they have exceeded their bounds.
Surely if the President of the United States were to claim that he can act beyond the scope of limitations placed upon him by Congress and the Constitution the Supreme Court will slap him down rather than allow him to continue on the path to the sort of tyranny we are now seeing in Pakistan....
Or will it? The positions taken by the newest as well as some of the longer serving members of the U.S. Supreme Court on the issue of Executive Power gives one pause.
If we ever need a reminder on why our Constitution mandates a system of checks and balances, and how very much we depend upon the Supreme Court to prevent the executive from accumulating too much power, we need only look to the images of lawyers at the barricades in Pakistan today, where a powerful executive with a military at his command is making a mockery of the Rule of Law.
Wednesday, March 14, 2007
Lessons Learned: Abuse of Government Power
Looking over the posts from the past week or so and the disclosure of the most recent in the George W. Bush administration's "long train of abuses and usurpations," in larger terms what can we learn from all of this?
One thing we can say for certain is that our current multiple crises serve as strong confirmation of the importance of our Constitution in preventing the sorts of abuses of governmental power we are now witnessing.
Yes, abuse of power - plain and simple. And this is a non-partisan point. It matters not if the perpetrators are Republican, Democrat, Independent, Red, Green, Blue, or whatever - if people in government use their positions in ways that attempt to circumvent the rule of law, regardless of the agenda, it is abuse of power.
Our forefathers knew the corrupting effect of power, and had a deep aversion to its unjust exercise. As Bernard Bailyn put it in his Bancroft- and Pulitzer-Prize winning 1967 book, "The Ideological Origins of the American Revolution":
“‘Power’ to them meant the dominion of some men over others, the human control of human life: ultimately, force, compulsion…. Most commonly the discussion of power centered on its essential characteristic of aggressiveness: its endlessly propulsive tendency to expand itself beyond legitimate boundaries….” The founding and framing generation held to "'[t]he general point … that the preservation of liberty rested on the ability of the people to maintain effective checks on the wielders of power, and hence in the last analysis rested on the vigilance and moral stamina of the people.”
Bailyn concludes, “The acuteness of the colonists’ sense of this problem is, for the twentieth-century reader, one of the most striking things to be found in this eighteenth-century literature: it serves to link the Revolutionary generation to our own in the most intimate way.”
Lessons of history learned, not (we hope) to be forgotten.
By: Michael Anthony Lawrence
One thing we can say for certain is that our current multiple crises serve as strong confirmation of the importance of our Constitution in preventing the sorts of abuses of governmental power we are now witnessing.
Yes, abuse of power - plain and simple. And this is a non-partisan point. It matters not if the perpetrators are Republican, Democrat, Independent, Red, Green, Blue, or whatever - if people in government use their positions in ways that attempt to circumvent the rule of law, regardless of the agenda, it is abuse of power.
Our forefathers knew the corrupting effect of power, and had a deep aversion to its unjust exercise. As Bernard Bailyn put it in his Bancroft- and Pulitzer-Prize winning 1967 book, "The Ideological Origins of the American Revolution":
“‘Power’ to them meant the dominion of some men over others, the human control of human life: ultimately, force, compulsion…. Most commonly the discussion of power centered on its essential characteristic of aggressiveness: its endlessly propulsive tendency to expand itself beyond legitimate boundaries….” The founding and framing generation held to "'[t]he general point … that the preservation of liberty rested on the ability of the people to maintain effective checks on the wielders of power, and hence in the last analysis rested on the vigilance and moral stamina of the people.”
Bailyn concludes, “The acuteness of the colonists’ sense of this problem is, for the twentieth-century reader, one of the most striking things to be found in this eighteenth-century literature: it serves to link the Revolutionary generation to our own in the most intimate way.”
Lessons of history learned, not (we hope) to be forgotten.
By: Michael Anthony Lawrence
Wednesday, February 21, 2007
Old (Feb.1,2006): Why Justices' Constitutional Philosophies Matter
Why Justices’ Constitutional Philosophies Matter
By: Michael Anthony Lawrence
With Joseph Alito’s confirmation to the U.S. Supreme Court, it is appropriate to take a moment to reflect upon why all Americans - Republicans, Democrats, Libertarians, Socialists, Greens, Blues, and Reds alike - should care deeply about the constitutional philosophies of the men and women who sit on the Supreme Court.
Like Achilles of Greek myth, the U.S. Constitution is strong yet vulnerable. The Constitution’s vulnerability derives, ironically, from the source of its greatest strength -the power of the Supreme Court to strike down the unconstitutional actions of the legislative and executive branches.
The Constitution’s vulnerability is dangerously exposed when the Court fails to exercise this judicial power to rein-in the excesses of the executive and legislative branches, because there is simply no other institution left to protect individual and minority rights. Occasionally the Court has so failed, as it did during World War I when it upheld vast legislative prohibitions on speech; or during World War II when it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans, but our history would look quite different if the Court had not eventually come back around in these instances and others to the position that the Court needs to check the power of the democratically-elected executive and legislature.
Some jurists and scholars protest that judicial “activism” is undemocratic and inappropriate. These arguments ignore the fact that the broad judicial power to correct majoritarian excesses is precisely how the founders originally envisioned the Court’s role in the constitutional design. As James Madison said (as urged by his friend Thomas Jefferson) on June 8, 1789 in asking the First Congress to adopt the Bill of Rights, “one [needs] to control the majority from those acts to which they might be otherwise inclined… independent tribunals of justice will consider themselves in a peculiar manner … [to] be an impenetrable barrier against every assumption of power in the legislative or executive [branch]; they will be naturally led to resist every encroachment upon rights….”
So as we see increasing numbers of Supreme Court jurists whose constitutional philosophies provide for a very powerful “unitary” executive with little judicial interference, there is justifiable cause for concern. This concern is far from arcane – at the extreme, an unchecked executive can lead to excesses of the sort that occurred in Germany in the 1930s and 40s. Hitler himself came to power, after all, through popular acceptance of the ideas of German jurists like Carl Schmitt, who argued in the 1920s and 30s that Article 48 of the German Constitution “conferred an unlimited authority in the executive as ‘protector of the Constitution’ to suspend the Constitution during a state of emergency, as long as he restored the Constitution when the emergency ended.”
In short, the U.S. Supreme Court as newly-composed must not shrink from fulfilling its crucial - yes, active - historic role of critically reviewing the actions of the executive and striking them down where necessary.
By: Michael Anthony Lawrence
With Joseph Alito’s confirmation to the U.S. Supreme Court, it is appropriate to take a moment to reflect upon why all Americans - Republicans, Democrats, Libertarians, Socialists, Greens, Blues, and Reds alike - should care deeply about the constitutional philosophies of the men and women who sit on the Supreme Court.
Like Achilles of Greek myth, the U.S. Constitution is strong yet vulnerable. The Constitution’s vulnerability derives, ironically, from the source of its greatest strength -the power of the Supreme Court to strike down the unconstitutional actions of the legislative and executive branches.
The Constitution’s vulnerability is dangerously exposed when the Court fails to exercise this judicial power to rein-in the excesses of the executive and legislative branches, because there is simply no other institution left to protect individual and minority rights. Occasionally the Court has so failed, as it did during World War I when it upheld vast legislative prohibitions on speech; or during World War II when it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans, but our history would look quite different if the Court had not eventually come back around in these instances and others to the position that the Court needs to check the power of the democratically-elected executive and legislature.
Some jurists and scholars protest that judicial “activism” is undemocratic and inappropriate. These arguments ignore the fact that the broad judicial power to correct majoritarian excesses is precisely how the founders originally envisioned the Court’s role in the constitutional design. As James Madison said (as urged by his friend Thomas Jefferson) on June 8, 1789 in asking the First Congress to adopt the Bill of Rights, “one [needs] to control the majority from those acts to which they might be otherwise inclined… independent tribunals of justice will consider themselves in a peculiar manner … [to] be an impenetrable barrier against every assumption of power in the legislative or executive [branch]; they will be naturally led to resist every encroachment upon rights….”
So as we see increasing numbers of Supreme Court jurists whose constitutional philosophies provide for a very powerful “unitary” executive with little judicial interference, there is justifiable cause for concern. This concern is far from arcane – at the extreme, an unchecked executive can lead to excesses of the sort that occurred in Germany in the 1930s and 40s. Hitler himself came to power, after all, through popular acceptance of the ideas of German jurists like Carl Schmitt, who argued in the 1920s and 30s that Article 48 of the German Constitution “conferred an unlimited authority in the executive as ‘protector of the Constitution’ to suspend the Constitution during a state of emergency, as long as he restored the Constitution when the emergency ended.”
In short, the U.S. Supreme Court as newly-composed must not shrink from fulfilling its crucial - yes, active - historic role of critically reviewing the actions of the executive and striking them down where necessary.
Old (Jan.10, 2006): President's Domestic Wiretapping Violates Constitution
President’s Eavesdropping Order Violates Constitution
by: Michael Anthony Lawrence
Discussions surrounding the still-bubbling controversy about the President’s post-9/11 decision to allow secret domestic eavesdropping on American citizens – including last Friday’s report from the non-partisan Congressional Research Service stating that Bush's decision was not “well grounded” in the law - brings to mind a comment made by Chief Justice John Roberts during his confirmation hearings last September. Asked if he adhered to a view of the Court as Congress’s taskmaster, then-nominee Roberts responded, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.”
Justice Roberts’ comment nicely captures the axiomatic essence of the political theory underlying this Nation’s system of government (and one that clearly escapes the President and his handlers): It is the Constitution – not Congress, not the Executive, not even the Judiciary – that establishes the baseline conduct to which government must faithfully adhere. It is the Constitution, in other words, that is sovereign; and nothing any official in any branch of government tries to say (current Presidential hubris notwithstanding) can change the underlying core proposition that government, in the conduct of its official duties, simply may not ignore basic constitutional guarantees - here, of individual liberty and freedom from unreasonable governmental intrusion – not even during times of national emergency.
Think of it like this: if your neighbor tried to give away your house, you’d be legally justified to prevent this from occurring – the house simply is not the neighbor’s to give away. Similarly, constitutional protections of individual liberties simply are not the President’s or Congress’s – or the Court’s - to give away.
True enough, there are limited circumstances where the President and Congress may regulate (but not remove outright) an individual’s constitutionally-protected liberties, but only when the government meets a heavy burden of showing its action both is no more intrusive than necessary and is pursuant to an extremely strong government interest.
In the current eavesdropping context, Congress recognized that the Constitution would prohibit highly discretionary governmental eavesdropping, and so required in the Foreign Intelligence Surveillance Act of 1978 (FISA) that the government obtain search warrants from a special secret court before conducting electronic surveillance of people suspected to be terrorists or spies.
By authorizing warrantless eavesdropping and ignoring FISA, President Bush exceeded his constitutional power. As Justice Jackson put it in a case fifty years ago striking down President Truman’s government seizure of private steel mills during the Korean War, “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.…”; whereas, “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Here, Bush operated in a way incompatible with the expressed will of Congress, and his power was at its lowest ebb.
But the larger point is that even if Congress did somehow implicitly authorize warrantless searches in the wake of 9/11, as the President claims (and the nuances of this “he said, she said” dispute will surely be a large issue in the promised hearings questioning Attorney General Alberto Gonzales and others before the Senate Judiciary Committee early next month), this just means that Congress, in collaboration with the President, has acted unconstitutionally. It is one thing to say that government may impose limitations on individual liberties if it meets the substantial burdens required in a warrant; it is another, however, to grant the Executive unfettered discretion to spy on citizens free of any judicial oversight whatsoever. Moreover, it is no more acceptable for two branches of government acting in cooperation to violate the Constitution than it would be for one to do so acting alone.
In short, the Constitution is a taskmaster – and it is a stern taskmaster indeed. If we’ve learned anything from 217 years of experience with this Constitution, it’s that government frequently overreaches, and the Constitution steps in to bring the government back into line. So it shall be here as well. Any other result, allowing expansion of an all-powerful government at the expense of individual liberty, plays directly into the hands of the terrorists, and would itself amount to a victory for them.
by: Michael Anthony Lawrence
Discussions surrounding the still-bubbling controversy about the President’s post-9/11 decision to allow secret domestic eavesdropping on American citizens – including last Friday’s report from the non-partisan Congressional Research Service stating that Bush's decision was not “well grounded” in the law - brings to mind a comment made by Chief Justice John Roberts during his confirmation hearings last September. Asked if he adhered to a view of the Court as Congress’s taskmaster, then-nominee Roberts responded, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.”
Justice Roberts’ comment nicely captures the axiomatic essence of the political theory underlying this Nation’s system of government (and one that clearly escapes the President and his handlers): It is the Constitution – not Congress, not the Executive, not even the Judiciary – that establishes the baseline conduct to which government must faithfully adhere. It is the Constitution, in other words, that is sovereign; and nothing any official in any branch of government tries to say (current Presidential hubris notwithstanding) can change the underlying core proposition that government, in the conduct of its official duties, simply may not ignore basic constitutional guarantees - here, of individual liberty and freedom from unreasonable governmental intrusion – not even during times of national emergency.
Think of it like this: if your neighbor tried to give away your house, you’d be legally justified to prevent this from occurring – the house simply is not the neighbor’s to give away. Similarly, constitutional protections of individual liberties simply are not the President’s or Congress’s – or the Court’s - to give away.
True enough, there are limited circumstances where the President and Congress may regulate (but not remove outright) an individual’s constitutionally-protected liberties, but only when the government meets a heavy burden of showing its action both is no more intrusive than necessary and is pursuant to an extremely strong government interest.
In the current eavesdropping context, Congress recognized that the Constitution would prohibit highly discretionary governmental eavesdropping, and so required in the Foreign Intelligence Surveillance Act of 1978 (FISA) that the government obtain search warrants from a special secret court before conducting electronic surveillance of people suspected to be terrorists or spies.
By authorizing warrantless eavesdropping and ignoring FISA, President Bush exceeded his constitutional power. As Justice Jackson put it in a case fifty years ago striking down President Truman’s government seizure of private steel mills during the Korean War, “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.…”; whereas, “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Here, Bush operated in a way incompatible with the expressed will of Congress, and his power was at its lowest ebb.
But the larger point is that even if Congress did somehow implicitly authorize warrantless searches in the wake of 9/11, as the President claims (and the nuances of this “he said, she said” dispute will surely be a large issue in the promised hearings questioning Attorney General Alberto Gonzales and others before the Senate Judiciary Committee early next month), this just means that Congress, in collaboration with the President, has acted unconstitutionally. It is one thing to say that government may impose limitations on individual liberties if it meets the substantial burdens required in a warrant; it is another, however, to grant the Executive unfettered discretion to spy on citizens free of any judicial oversight whatsoever. Moreover, it is no more acceptable for two branches of government acting in cooperation to violate the Constitution than it would be for one to do so acting alone.
In short, the Constitution is a taskmaster – and it is a stern taskmaster indeed. If we’ve learned anything from 217 years of experience with this Constitution, it’s that government frequently overreaches, and the Constitution steps in to bring the government back into line. So it shall be here as well. Any other result, allowing expansion of an all-powerful government at the expense of individual liberty, plays directly into the hands of the terrorists, and would itself amount to a victory for them.
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